Taylor v Australian Postal Corporation [2004] FCA 1265

FEDERAL COURT OF AUSTRALIA

Taylor v Australian Postal Corporation [2004] FCA 1265 PRACTICE AND PROCEDURE – Costs – proceeding settled – no determination on merits – usual exercise of discretion by making no order as to costs – whether all disputes over a procedural course to be followed will have costs consequences, determined on an adversarial basis, where the Court follows the course supported by one party and opposed by the other.

Safety, Rehabilitation and Compensation Act (1988) (Cth) s 57

Re Minister for Immigration & Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 followed

MIEME TAYLOR v AUSTRALIAN POSTAL CORPORATION NSD 1221 of 2004 LINDGREN J 29 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1221 OF 2004

BETWEEN: MIEME TAYLOR

APPLICANT

AND: AUSTRALIAN POSTAL CORPORATION

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 29 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT NOTES THAT: 1. There is no order as to costs, to the intent that each party is to bear its own costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1221 OF 2004

BETWEEN: MIEME TAYLOR

APPLICANT

AND: AUSTRALIAN POSTAL CORPORATION

RESPONDENT

JUDGE: LINDGREN J

DATE: 29 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 On 1 September 2004 by consent I ordered that the application be dismissed, that costs be reserved and that the parties provide written submissions on costs. They have done so. 2 Where, as here, there has not been a final hearing on the merits, the Court does not attempt to determine what the result of such a hearing would have been. In Re Minister for Immigration & Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 ('Lai Qin'), McHugh J said (at 625): 'If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the Court will make no order as to the cost of the proceedings.' This formulation allows for the making of an order where a party has acted unreasonably. Moreover, even in the absence of unreasonableness, an order for costs may be made where the Court can be confident what the result would have been: Lai Qin at 625. 3 I have reached the conclusion that no order should be made as to costs: neither party appears to have acted unreasonably and I am not confident what the result of a final hearing would have been.